H (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Order |
| Judgment Date | 08 March 2011 |
| Neutral Citation | [2011] EWCA Civ 326 |
| Date | 08 March 2011 |
| Docket Number | Case No: B4/2010/2546 |
| Court | Court of Appeal (Civil Division) |
[2011] EWCA Civ 326
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
Mr Recorder Fairwood
Before: Lord Justice Munby
Case No: B4/2010/2546
Miss Marisa Allman (instructed by Messrs Carters) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
(Approved as corrected)
Lord Justice Munby:
These are private law proceedings relating to a little girl who is a matter of a few weeks short of her eleventh birthday. She lives with her mother. Following the parents' separation contact continued to father for a while, but then, in circumstances which are in dispute between the parents, came to an end. After some delay, father in 2009 made an application for a contact order.
There was, unhappily, considerable delay, about which subsequently Mr Recorder Fairwood with some justification made trenchant comment. But when the case came before the District Judge for a directions hearing on 23 February 2010 it is to be noted that in his order he recorded the fact, having read the report from CAFCASS dated 15 February 2010, that, although the mother did not oppose the father's application "in principle", she was:
"wholly unwilling to contemplate contact taking place at the level suggested and recommended in the CAFCASS report;"
and moreover was:
"wholly unwilling to submit to or co-operate with, the psychological assessment of herself as discussed and recommended in the CAFCASS report."
The matter came on for hearing before Mr Recorder Fairwood in May 2010. It is a happy feature of this case, unlike so many similar such cases, that thereafter there has been judicial continuity, for Recorder Fairwood has had the conduct of all subsequent hearings. On 13 May 2010 the Recorder made an order providing for contact. It is a fact, as Miss Allman, who appears before me today on behalf of the mother, accepts, that despite that order, and indeed a subsequent order for contact, only one occasion of contact has ever taken place. The judgment which the Recorder gave on that occasion has been transcribed. As he explained (see paragraph 21), he took the view it was not necessary for him "today", and he emphasised the word "today", to make findings of fact on all of certain matters of concern which had been raised by the CAFCASS officer in her report.
The matter came subsequently before the Recorder on a number of occasions. As it seems to me appropriately, he had indicated that he wished to have a report from the father's representatives as to how contact was going, and, being notified of the seeming absence of contact, he made an "own volition" order on 14 July 2010 fixing a further hearing before him. He ordered the mother to attend unless in the meantime contact had been resumed. In the event of her failing to give contact in accordance with the terms of that and the previous order, the order proceeded:
"she shall show cause … when she should not be dealt with for a contempt of court."
The father, as I understand it, had not at that stage indicated (nor did he subsequently) any wish to move for the mother's committal.
The matter came before the Recorder in October 2010, and it is the order which he made following that hearing on 7 October 2010 which is the subject of the current application.
What happened during that hearing was that the mother, amongst other witnesses, gave evidence in the usual way. Unhappily, as at that date the earlier judgment of the Recorder had not been transcribed, and counsel appearing for the mother in October (Miss Allman), who had not been instructed at the time of the hearing in May 2010, was therefore understandably not familiar with what the Recorder had said on the previous occasion. Following evidence and submissions the Recorder began to deliver judgment setting out (so he professed) the finding which he had privately made as a result of the earlier hearing in May 2010, but which, for the reasons he had given on that occasion, had not been set out in his earlier judgment. Miss Allman makes the point that in fact the findings which he set out extended beyond findings he could have reached in May 2010 because they included reference in at least one respect to subsequent events.
Miss Allman's primary complaint relates to the procedure—she would submit at the least the arguably inappropriate procedure—which the Recorder adopted in two separate respects: first in making privately (but not communicating to the parties) findings in May which were not communicated until the conclusion of the hearing in October 2010; and, second, his taking of the initiative in suggesting that committal was the appropriate way forward in July 2010, albeit, as we will see in a moment, he had by October 2010 adopted a rather different view as to the appropriate way forward. When the matter was considered on the papers by Thorpe LJ, because the application today is a renewed application for permission, Thorpe LJ, refusing permission, said:
"Although the course taken by the Recorder was unusual I conclude that it was open to him given the applicant's intransigence and the risk of harm to the child."
Despite what Miss Allman has pressed upon me today in an attractive and realistic submission, I remain unpersuaded that there is any arguable merit in the complaint of procedural irregularity or procedural unfairness. The technique which a judge can or should appropriately adopt in an intractable contact dispute—the expression used to describe the present case by the Recorder and a description from which Miss Allman does not dissent—will of course depend upon the particular circumstances of the particular case. As has been emphasised on many occasions, there is no panacea, there is no one-size-fits-all solution; different solutions may seem to be appropriate to different judges in superficially similar cases. It seems to me that it was plainly within the discretion of the Recorder to take the view that it was appropriate to raise in July 2010, if only to stop the mother in her tracks, the spectre of possible committal. The fact that the father had made no such application is not of itself, either as a matter of law or as a matter of practice, an objection to the judge, if he thinks it appropriate, doing so of his own volition.
So far as concerns the suggestion of procedural unfairness, it seems to me that the short answer to that is this. As appears from the transcript of the judgment on 7 October 2010, having set out the findings which he had not previously disclosed to the parties, the Recorder then adjourned due to the imminence of the lunch adjournment. There is a transcript setting out what then happened. Following the lunch adjournment Miss Allman said that she had had the opportunity to consider those findings with her client and she sought an opportunity to address the Recorder further about them, to which the Recorder said "of course". Miss Allman then did so.
There are two features to be noted from the transcript of the submissions which then followed before the Recorder resumed giving his judgment. First, that Miss Allman was content to approach the matter by way of further submissions. She did not suggest—and I am not for a moment suggesting that it would have been appropriate for her to suggest—any need to recall her client to give...
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